What happens when a collective agreement loses its validity and there is no collective agreement that provides a solution? In particular, if the provision in the fourth subparagraph of Article 86(3) of the worker's statute is applied, according to which "after one year has elapsed since the termination of the agreement without a new agreement having been agreed or an arbitration award having been made, the agreement shall, unless otherwise agreed, cease to be in force and the applicable higher-level collective agreement, if any, shall apply"; or, on the contrary, such provision shall be dispensed with and the previous agreement shall continue to apply.
The question has been resolved after the Plenary Session of the Social Chamber of the Supreme Court held on 30 May 2018, made up of 11 judges, and which gave rise to the judgments delivered on 5 (RCUD 364/2017, rapporteur Mr. Angel Blasco Pellicer) and 7 June 2018 (RCUD 663/2017, with a presentation by Mr. Sebastián Moralo Gallego).
Both cases involved lawsuits against Axpe Consulting, S.L., following objective dismissals for productive and economic reasons, which questioned the interpretation of the Collective Provincial Agreement on Offices and Offices for Bizkaia in force for 2009, 2010, 2011 and 2012 (Offical Gazette of the Basque Country 6 June 2011) and, specifically, Article 3 thereof:
Duration, extension and denunciation
"This Convention shall enter into force upon signature by the parties entitled to it. The period of validity of this Agreement shall be four years from 1 January 2009 to 31 December 2012, with the exception of travel, subsistence allowance and mileage, which shall not be retroactive and shall be effective from the date of signature of this Agreement.
This Agreement shall be deemed to have been terminated on 15 December 2012 and both parties undertake to begin deliberations on the next Agreement within fifteen days of the date of delivery of the preliminary draft, either by the workers' representatives or by the business representatives".
The core issue of the procedures revolved around whether a compensation for objective dismissal (1-7-2015) declared appropriate should be calculated in accordance with the salary conditions of a Collective Agreement (Provincial of Offices and Dispatches for Bizkaia) whose validity had expired, or in accordance with the applicable Collective Agreement of a higher scope (State-owned Market Consulting Companies).
The Supreme Court...